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OSGATA et. al. vs. Monsanto

March 13, 2012 - I suspect a lot of you already know that U.S. Federal District Judge Naomi Buchwald, of the Southern District of New York, tossed out the lawsuit that had been brought against Monsanto by organic farmers. The suit was filed last March, and the dismissal took place late last month. It would appear Monsanto got to Judge Buchwald before she rendered her dismissal, since the case was a substantive one.

Let's review. This was a patent infringement lawsuit, brought with the legal backing of the Public Patent Foundation, a nonprofit that works to reduce abuses of the U.S. patent system. Organic farmers were represented by an organization called the Organic Seed Growers and Trade Association (OSGATA), along with 82 other plaintiffs representing as many as 300,000 farmers. Farmers sought a declaratory judgment against Monsanto, because Monsanto has sued hundreds of farmers over the years whose crops accidentally wound up being cross-pollinated with Monsanto's patented genes. This can happen due either to wind or insect pollination.

Don't you think it ought to be Monsanto's job to keep their seed from contaminating other types of seed? That is the only direction contamination is moving; Monsanto has expressed no concern about contamination from the other direction. Inasmuch as it is their seed which is the contamination vehicle, shouldn't Monsanto farmers have to worry about establishing a buffer zone in order to prevent contamination, instead of the other way around? When Farmer A's pig gets into Farmer B's garden, Farmer A is held responsible for the wayward behavior of his pig. How is this situation different?

Though Monsanto has repeatedly insisted it would not sue farmers for accidental acquisition of their patented life forms, they have, in fact, done exactly that. The most famous case of this type of legal harassment is that of Percy and Louise Schmeiser, during which Monsanto sued them for a million dollars and all their equipment. There have been 144 similar lawsuits, along with dozens of others that reached settlement out of court. Since much of the corn, soy, canola and cotton grown in the United States is genetically modified, this is a big deal. Monsanto's widely perceived goal is to sell their seed, and their seed only, to all farmers who grow these crops. In a back door kind of way, they already are, at least where corn is concerned; according to the companies that sell organic corn to dairies or other farmers, most organic corn in the US contains one half to two percent GMOs.

In fact, the problem has become so widespread that last year, the USDA's Advisory Committee on Biotechnology in the 21st Century began discussing ways to protect organic crops from contamination. Some of the participating scientists have wondered out loud if organic agriculture can survive in a world of genetically-modified crops. Why on earth wasn't this concern regarding contamination voiced years and years ago? Why would scientists wait so long to study the problem? Does Monsanto own them, too? Are they secretly hoping it's too late, so they won't have to do battle with the Ag Monster?

The farmers involved in the lawsuit had hoped that, as a result of their lawsuit, Monsanto's patents would be re-examined. This, of course, did not happen. Dan Ravicher, executive director of the Public Patent Foundation, headquartered at Cardozo Law School, and OSGATA's lead attorney, believes Judge Buchwald's "opinion is flawed on both the facts and the law." University of Maine School of Law Professor Rita Heimes further observes that Monsanto's patent-infringement lawsuits are unique in the intellectual property field. Most patent-infringement lawsuits involve one manufacturing company suing another for appropriating patented technology, she says.

Jim Gerritsen, an organic potato seed farmer from Maine, and OSGATA president, says the group will appeal. You will be happy to know that the 83 different plaintiff organizations are already discussing ways to proceed.

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